Judicial Review of Report of Parliamentary Committee:
The Division Bench expressed thus:-
“72. The controversy has to be seen from the perspective of judicial review. The basic principle of judicial review is to ascertain the propriety of the decision making process on the parameters of reasonableness and propriety of the executive decisions. We are not discussing about the parameters pertaining to the challenge of amendments to the Constitution or the constitutionality of a statute. When a writ of mandamus is sought on the foundation of a factual score, the Court is required to address the facts asserted and the averments made and what has been stated in oppugnation. Once the Court is asked to look at the report, the same can be challenged by the other side, for it cannot be accepted without affording an opportunity of being heard to the Respondents. The invitation to contest a Parliamentary Standing Committee report is likely to disturb the delicate balance that the Constitution provides between the constitutional institutions. If the Court allows contest and adjudicates on the report, it may run counter to the spirit of privilege of Parliament which the Constitution protects.
73. As advised at present, we are prima facie of the view that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. However, regard being had to the substantial question of law relating to interpretation of the Constitution involved, we think it appropriate that the issue be referred to the Constitution Bench under Article 145(3) of the Constitution.‖
5. Thereafter, the two-Judge Bench framed the following questions for the purpose of reference to the Constitution Bench:-
“73.1. (i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?
73.2. (ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”
Supremacy of Constitution of India:
Our Constitution was framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19 and 21 represent the foundational values which form the bedrock of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers.
Thus, the three wings of the State are bound by the doctrine of constitutional sovereignty and all are governed by the framework of the Constitution. The Constitution does not accept transgression of constitutional supremacy and that is how the boundary is set.
Under the Constitution, the Parliament and the State legislatures have been entrusted with the power of law making. Needless to say, if there is a transgression of the constitutional limitation, the law made by the legislature has to be declared ultra vires by the Constitutional Courts. That power has been conferred on the Courts under the Constitution and that is why, we have used the terminology ―constitutional sovereignty‖. It is an accepted principle that the rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State, whether it be the legislature or the executive or any other authority, should be within the constitutional limitations.
Judicial Review:
Court has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. The conferment of the power of judicial review has a great sanctity as the Constitutional Court has the power to declare any law as unconstitutional if there is lack of competence of the legislature keeping in view the field of legislation as provided in the Constitution or if a provision contravenes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary.
When we speak about judicial review, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that judges ought to decide cases while being within their defined limits of power. Judges are expected to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution.
Judicial Restraint:
The judicial restraint cannot and should not be such that it amounts to judicial abdication and judicial passivism. The Judiciary cannot abdicate the solemn duty which the Constitution has placed on its shoulders, i.e., to protect the fundamental rights of the citizens guaranteed under Part III of the Constitution. The Constitutional Courts cannot sit in oblivion when fundamental rights of individuals are at stake. Our Constitution has conceived the Constitutional Courts to act as defenders against illegal intrusion of the fundamental rights of individuals. The Constitution, under its aegis, has armed the Constitutional Courts with wide powers which the Courts should exercise, without an iota of hesitation or apprehension, when the fundamental rights of individuals are in jeopardy.
Parliamentary Committee:
Today parliamentary committee systems have emerged as a creative way of parliaments to perform their basic functions. They serve as the focal point for legislation and oversight. In a number of parliaments, bills, resolutions and matters on specific issues are referred to specific committees for debate and recommendations are made to the House for further debate. Parliamentary committees have emerged as vibrant and central institutions of democratic parliaments of today’s world. Parliaments across the globe set up their own rules on how committees are established, the composition, the mandate and how chairpersons are to be selected but they do have certain characteristics in common. They are usually a small group of MPs brought together to critically review issues related to a particular subject matter or to review a specific bill. They are often expected to present their observations and recommendations to the Chamber for final debate.
Often committees have a multi-party composition. They examine specific matters of policy or government administration or performance. Effective committees have developed a degree of expertise in a given policy area, often through continuing involvement and stable memberships. This expertise is both recognized and valued by their colleagues. They are able to represent diversity as also reconcile enough differences to sustain recommendations for action. Also, they are important enough so that people inside and outside the legislature seek to influence outcomes by providing information about what they want and what they will accept. Furthermore, they provide a means for a legislative body to consider a wide range of topics in-depth and to identify politically and technically feasible alternatives. K. International position of Parliamentary Committees.
The functions of the Parliament in modern times are not only diverse and complex in nature but also considerable in volume and the time at its disposal is limited. It cannot, therefore, give close consideration to all the legislative and other matters that come up before it. A good deal of its business is, therefore, transacted in the Committees of the House known as Parliamentary Committees. Parliamentary Committee means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker.
Parliamentary privilege:
No member of Parliament shall be made liable to any proceedings in any court in respect of anything he has said in the committee. Freedom of speech that is available to the members on the floor of the legislature is quite distinct from the freedom which is available to the citizens under Article 19(1)(a) of the Constitution. Members of the Parliament enjoy full freedom in respect of what they speak inside the House. Article 105(4) categorically stipulates that the provisions of clauses (1), (2) and (3) shall apply in relation to persons, who by virtue of this Constitution, have the right to speak in, and otherwise to take part in the proceedings of, a House of the Parliament or any committee thereof as they apply in relation to the members of the Parliament. Thus, there is complete constitutional protection.
The Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same.
Contest on facts:
In the case at hand, the controversy does not end there inasmuch as the petitioners have placed reliance upon the contents of the parliamentary standing committee report and the respondents submit that they are forced to controvert the same. Be it clearly stated, the petitioners intend to rely on the contents of the report and invite a contest. In such a situation, the Court would be duty bound to afford the respondents an opportunity of being heard in consonance with the principles of natural justice. This, in turn, would give rise to a very peculiar situation as the respondents would invariably be left with the option either to: (i) accept, without contest, the opinion expressed in the parliamentary standing committee report and the facts stated therein; or (ii) contest the correctness of the opinion of the parliamentary standing committee report and the facts stated therein. In the former scenario, the respondents at the very least would be put in an inequitable and disadvantageous position. It is in the latter scenario that the Court would be called upon to adjudicate the contentious facts stated in the report. Ergo, whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.
Answer by Supreme Court to the reference:
In view of the aforesaid analysis, we answer the referred questions in the following manner:-
(i) Parliamentary Standing Committee report can be taken aid of for the purpose of interpretation of a statutory provision wherever it is so necessary and also it can be taken note of as existence of a historical fact.
(ii) Judicial notice can be taken of the Parliamentary Standing Committee report under Section 57(4) of the Evidence Act and it is admissible under Section 74 of the said Act.
(iii) In a litigation filed either under Article 32 or Article 136 of the Constitution of India, this Court can take on record the report of the Parliamentary Standing Committee. However, the report cannot be impinged or challenged in a court of law.
(iv) Where the fact is contentious, the petitioner can always collect the facts from many a source and produce such facts by way of affidavits, and the Court can render its verdict by way of independent adjudication.
(v) The Parliamentary Standing Committee report being in the public domain can invite fair comments and criticism from the citizens as in such a situation, the citizens do not really comment upon any member of the Parliament to invite the hazard of violation of parliamentary privilege.
139. The reference is answered accordingly.
Mystery of Law and Justice 